Buescher v. Workmen's Compensation Appeals Board

Petitioner, Rose E. Buescher seeks to review a decision of the Workmen’s Compensation Appeals Board (hereafter referred to as the board), denying petitioner a death benefit under the Workmen’s Compensation Law and a pension under the Public Employees’ Retirement Law.

Petitioner is the surviving widow of Henry J. Buescher, who died June 15, 1965, as a result of a heart attack. At the time of his death decedent had been employed as a maintenance foreman for the Department of Conservation of the State of California for a period of 15 years. His duties were to maintain in operating condition some 200 units of the Division of Forestry firefighting equipment and to be present at all fires in his district for that purpose.

On August 5, 1965, petitioner filed an application with the board for the payment of a death benefit, a burial allowance and for “other appropriate benefits, pursuant to Workmen’s Compensation Law.” The application was designated as case

On July 7, 1967, the Retirement System informed petitioner that she would receive a monthly allowance of $346.51 (the special death benefit) for the balance of her lifetime or until remarriage, but reduced by any social security benefits petitioner might be entitled to in the future. However, almost two weeks later, on July 18, 1967, Thomas J. Marren, the attorney for State Compensation Insurance Fund, petitioned the board for reconsideration. The first page of the petition contained both case numbers and the names of both defendants. It was also signed “Thomas J. Marren, Attorney for Defendants.” But the body of the petition did not state with specificity that the petition was brought on behalf of the Retirement System. It merely said:

“Comes now the State Compensation Insurance Fund, adjusting agent for the State of California, Department of Conservation ...”

On August 18, 1967, the board issued its “Opinion and Order Granting Reconsideration and Decision After Reconsideration.” In this decision the hoard, after mentioning both cases by number and title, annulled the referee’s award of a death benefit under the Workmen’s Compensation Law and substituted its own finding of fact as to the cause of decedent’s death; the board found that decedent’s death was not industrial and hence that petitioner was not .entitled to a death benefit under the Workmen’s Compensation Law or to a special death benefit under the Public Employees’ Retirement Law. The board expressed its opinion as follows:

“We have carefully reviewed the entire record including the testimony and medical reports of Dr. E. Sorsky, dated November 4, 1966 and March 28, .1967 and the testimony and medical report of Dr. William L. Adams, Jr., dated June 1, 1966.

“The record reveals that decedent worked as maintenance foreman for approximately-15 years and although the work entailed considerable overtime it was not particularly stressful or frustrating. Applicant, decedent’s widow testified that her husband’s doctor was Edwin P. Brauner, M.D., an internist. Dr. Brauner had never taken-an electrocardiogram of-

the decedent and there was apparently no prior impression of heart trouble before his death.

“The medical evidence in this case is conflicting. Dr. Adams testified that decedent died of coronary artery disease, coronary sclerosis, and arteriosclerotic heart disease. In Dr. Adams’ opinion, the decedent’s work did not cause or hasten his death. We are of the opinion that the testimony and report of Dr. Adams is more persuasive than the testimony and reports of Dr. Sorsky. The Board’s power to choose between conflicting medical reports is too well settled to require further comment. (See Foster v. I.A.C. 20 CCC 276.)

“We find therefore that the decedent did not sustain an injury arising out of or in the course of his employment.”

On September 7, 1967, petitioner petitioned the board for reconsideration. She alleged, inter alia, that the Retirement System had not asked for reconsideration and therefore was bound by the referee’s finding that decedent’s death was industrial. Petitioner also raised the applicability of the presumption established by section 3212 of the Labor Code. This section provides:

“In the case of . . . active firefighting members of the Division of Forestry of the State Department of Natural Resources whose duties require firefighting . . . the term ‘injury’ includes . . . heart trouble which develops or manifests itself during a period while such member is in the service of such . . . unit. . . .

“Such . . . heart trouble ... so developing or manifesting itself in such cases shall be presumed to arise out of and in the course of the employment. This presumption is disputable and may be controverted by other evidence, but unless so controverted, the appeals board is bound to find in accordance with it.

“Such . . . heart trouble ... so developing or manifesting itself in such cases shall in no case be attributed to any disease existing prior to such development or manifestation. ’ ’

On November 6, 1967, the board denied petitioner’s Petition for Reconsideration. The board made no express finding as to whether the petitioner was entitled to the benefit of the presumption established by Labor Code section 3212. It stated, however, “ [e]ven if Labor Code Section 3212 were considered to be applicable the presumption established by 3212 is controverted by the evidence of the record.” With regard to petitioner’s contention that the Retirement System was bound by the referee’s decision, the board stated: ‘ ‘ The parties entered

Petitioner raises four main contentions for annulment of the board’s decision: that the board exceeded its jurisdiction when it found that decedent’s death was not industrial as to petitioner’s claim for a death benefit under the Public Employees-’ Retirement Law; that the Retirement System acquiesced in the referee’s decision and is estopped from claiming otherwise; that the evidence is not sufficient to sustain the board’s decision; that the board’s findings of fact are fatally defective.

1) Petitioner’s first attack does not reach the merits of the board’s decision. She argues that the Retirement System did not request reconsideration, either directly or indirectly, because the Petition for Reconsideration which was presented by the State Compensation Insurance Fund did not mention the Retirement System nor did it state that it was brought on the Retirement System’s behalf. Accordingly, petitioner concludes that the board exceeded its jurisdiction when it found that petitioner’s husband’s death was not industrial and that petitioner was not entitled to a special death benefit under the Public Employees ’ Retirement Law.

Petitioner’s argument is not persuasive. First, the Retirement System’s letter stating that it was not going to be represented at the hearing was addressed to the board, not to the referee. Consequently, when the Retirement System informed the board that it was going to accept, as its own defense, the defense presented by the State Compensation Insurance Fund on behalf of the Department of Conservation, it was obviously referring to every defensive measure presented by that agency at every stage of the proceeding. Moreover, the letter also stated that “all testimony given and documents filed” applied to “the Retirement System’s application.” This statement was in essence a stipulation that the Retirement System considered itself bound by any document presented by the State Compensation Insurance Fund in furtherance of its de

2) Petitioner’s next contention is in the nature of an estoppel. She argues that when the Retirement System wrote to her after the referee’s decision and informed her that she was going to continue to receive pension payments until her death or remarriage, it acquiesced in the decision of the referee and became bound by that decision. She also asserts that she was misled by the Retirement System’s letter and hence did not oppose the Petition for Reconsideration.

Petitioner’s arguments lack substance. As we have stated, the responsibility of determining whether a state employee is entitled to a special death benefit under the Public Employees’ Retirement Law is vested in the board, not the Retirement System. Consequently, even if we should assume that the Retirement System acquiesced in the referee’s decision, its acquiescence was not binding on the board.

Moreover, as to petitioner’s argument that she was misled, the Petition for Reconsideration contained both case numbers and was signed by Mr. Marren as attorney for the defendants. And, significantly, the referee’s report and recommendation (a copy of which was served on petitioner’s attorney) recommended that the board deny reconsideration in both cases. Thus, petitioner was alerted to the possibility that the board was considering reconsideration in both cases. Yet she made no objection on the ground that the Retirement System had not requested reconsideration. In any event, even if it is assumed that petitioner was misled by the Retirement System ’s letter, there is nothing in the record to indicate that she was prejudiced, and a showing of prejudice is an essential element to an estoppel. On the contrary, petitioner presented her arguments in opposition to the board’s decision granting reconsideration when she filed her own Petition for Reconsideration. According to the record, these arguments were considered, albeit rejected by the board at that time.

Under Labor Code section 5907 the board can annul the findings and award of the referee and substitute its own findings and decision in light of all of the evidence in the record. And in doing so the board may “choose among conflicting medical reports those which it deems most persuasive” Jones v. Workmen’s Comp. App. Bd., 68 Cal.2d 476 , 478 [ 67 Cal.Rptr. 544 , 439 P.2d 648 ] ; Foster v. Industrial Acc. Com., 136 Cal.App.2d 812 , 815-816 [ 289 P.2d 253 ].) Moreover, on review conflicts in the evidence must be resolved in favor of the board’s findings and its factual determinations (though contrary to the referee’s) cannot be disturbed unless they are not supported by substantial evidence (Jones v. Workmen’s Comp. App. Bd., supra; Rogers Materials Co. v. Industrial Acc. Com., 63 Cal.2d 717 , 721 [ 48 Cal.Rptr. 129 , 408 P.2d 737 ]).

With these principles in mind, we conclude that petitioner’s contention is without substantial merit. Dr. Adams testified that decedent’s death was not attributable to Ms work and was caused by generalized arteriosclerosis brought about by dietary, hereditary and environmental factors. His opinion was based on the autopsy report, decedent’s medical history, the nature of decedent’s employment and the nature of decedent’s complaints and symptoms as disclosed by the evidence. Moreover, the doctor’s opinion was not predicated on a false premise. Dr. Adams did not state that decedent’s work was free from stress or that decedent did not experience some stress on the job. He merely testified that after considering all of the evidence (including the testimony of the petitioner), he did not believe that decedent's job was unusual or that the stress which decedent experienced on the job caused or substantially contributed to decedent’s heart attack.

Admittedly, petitioner’s assertion that stress is quite often

According to the uneontradieted evidence, decedent was required to be present at all fires in his district, and, like an active firefighting member of the Division of Forestry, was on 24-hour call during the fire season. It is therefore arguable that while working at or near the fire line decedent was exposed to most of the hazards obviously visualized by the Legislature (long tiring hours, smoke, fumes and similar hazards) when it specified that the presumption of Labor Code section 3212 is applicable only to “active firefighting members of the Division of Forestry . . . whose duties require firefighting.” Moreover, decedent was required to be present at the fires in order to maintain, in operating condition, the firefighting equipment which was being used by the Division of Forestry to combat the fires. And, in this sense at least, he was actively engaged in firefighting. In other words, it is also arguable that decedent was actively engaged in firefighting in the broad or general sense of the term. Consequently, petitioner was entitled to have all of the facts and circumstances of her husband’s employment carefully weighed by the board and to a finding (one way or the other) as to whether decedent was an active firefighting member of the Division of Forestry within the ambit of Labor Code section 3212.

In an attempt to justify the board’s failure to find on the issue as to whether decedent was an active firefighter, respondents’ counsel assert that the finding, if made, would have been against the petitioner. They argue that the term “fight” as defined by the lexicographers means “to attempt to defeat, subdue or destroy an enemy.” Accordingly, counsel argue “ [a] firefighter attempts to subdue the fire. Decedent’s job was to cure or relieve whatever ailed the machinery used by the firefighters. While he was often, when a fire was on, at the site of a fire, he was not exposed to it in the same manner that a firefighter was.” These arguments are merely attempts on the part of counsel to make findings of fact which should have been made by the board, and if anything they emphasize the board’s fatal omission. Manifestly, petitioner is entitled

Respondents’ final contention that the applicability of the presumption was not timely raised by petitioner is devoid of merit and no further comment is necessary.

The board’s Order Granting Reconsideration and Decision After Reconsideration is hereby annulled and the cause is remanded to the board for further proceedings in order to conform to the views expressed herein.

Conley, P. J., and Stone, J., concurred.